With the signing of Executive Order 13547 on July 19, 2010, President Obama established a new national ocean policy that calls for stewardship of the oceans and coasts. The executive order creates a National Ocean Council and directs federal agencies to “protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources” in a way that promotes “the well-being, prosperity, and security of present and future generations.”
This is a significant step forward for our oceans and coasts at a time when both are under increasing threat of degradation from a combination of overfishing, pollution, careless development, and climate change. What the order omits, however, is explicit reference to the legal doctrine that can serve as the platform to bring together government agencies to implement the new national ocean policy. The Obama administration should explicitly incorporate the language and principles of the public trust doctrine (PTD) as it implements the new policy to ensure that federal agencies adopt and perform their duties as stewards of the oceans and coasts for current and future generations.
The common-law principles of the PTD require the government to act as a responsible steward of the natural resources over which it has authority. The doctrine commands the government to allow reasonable public access to resources, while it protects the ability of both current and future generations to enjoy those resources. Although the PTD has more than two hundred years of history in the United States, it is an aspect of state rather than federal law. No court has ever explicitly acknowledged a federal version of the doctrine for the territorial sea and the exclusive economic zone (EEZ) that reaches 200 miles offshore. Nor has Congress created an explicit statutory federal trust duty for federal ocean waters. However, public trust language does appear in many statutes pertaining to federal oceans management, for example, in the National Environmental Policy Act, the Clean Water Act, the Superfund Act, and the Oil Pollution Control Act. An explicit federal PTD, if formally extended from state waters to the edges of the EEZ, would identify federal agencies as having responsibility for marine resources as trustees of the U.S. ocean public trust, and U.S. citizens would be established as the trust’s beneficiaries.
President Obama’s executive order establishes the framework for such an approach, employing the stewardship and intergenerational concepts of the PTD, but it stops short of an explicit statement that the doctrine will control federal actions with respect to the oceans and coasts. A national ocean policy carried forward in compliance with PTD principles would instill in the federal government (1) the duty to preserve trust resources and not to waste them; (2) the duty to administer the trust solely in the interest of its beneficiaries (both present and future); and (3) the duty to provide complete and accurate information to trust beneficiaries regarding the management of the trust.
In addition, the PTD would require federal agencies, as good stewards of the oceans, to conduct sufficient studies to establish key baseline information about the composition and functioning of the ecosystem—a prerequisite to effective conservation. Crucially, by protecting the rights of future generations, the PTD would also support the development of a comprehensive ecosystem-based management regime. In areas of the ocean affected by multiple activities, the duty to protect the interests of future beneficiaries would necessitate that agencies coordinate their management decisions to mitigate negative ecosystem impacts.